2019 Session Spotlight: Decriminalization Legislation

Ten states plus the District of Columbia have legalized the purchase and consumption of recreational marijuana. Those states are Alaska, where it is legal for adults 21 and over to possess up to one ounce of marijuana and legal to grow up to six marijuana plants per household; California (same); Colorado (same): District of Columbia (up to two ounces and six plants); Maine (up to 2.5 ounces and three flowering plants); Massachusetts (up to one ounce and six plants); Michigan (up to 2.5 ounces and 12 plants); Nevada (up to once ounce and six plants); Oregon (up to one ounce on the person and up to eight ounces at home and up to four plants per person); Vermont (up to one ounce and six plants per household); and Washington (legal to possess up to one ounce but illegal to grow plants).

In addition to those 10 states plus D.C., an additional 23 states have legalized just medical marijuana. They are:

Arizona

Arkansas

Connecticut

Delaware

Florida

Hawaii

Illinois

Louisiana

Maryland

Minnesota

Missouri

Montana

New
Hampshire

New
Jersey

New
Mexico

New
York

North
Dakota

Ohio

Oklahoma

Pennsylvania

Rhode
Island

Utah

West
Virginia

Several states have passed laws decriminalizing certain marijuana possession offenses. Typically, decriminalization means no arrest, prison time, or criminal record for the first-time possession of a small amount of marijuana for personal consumption. In most decriminalized states, these offenses are treated like a minor traffic violation. Additionally, over 50 localities in a dozen states have enacted municipal laws or resolutions either fully or partially decriminalizing minor cannabis possession offenses. All are states that have either legalized or legalized medical cannabis except for (1) Mississippi (getting caught with 30 grams of cannabis or less carries a $250 fine but is treated as a civil infraction with no arrest, criminal conviction or jail time for first offense); (2) Nebraska (decriminalized possession of up to one ounce of cannabis, $300 fine but no arrest); and (3) North Carolina (decriminalized up to .5 ounce by treating first offense as civil infraction carrying up to $200 fine).

Adding the 33 states plus D.C. that have legalized for recreational or medical use, there are a total of 36 states that have decriminalized, leaving only 14 states, including Indiana, which cling to the outmoded view that marijuana is a dangerous “drug” whose even private use should be punished severely through a state’s criminal justice system.

Though other states have legalized or decriminalized its use, cannabis remains illegal in Indiana even for medical purposes. Even a simple first possession of less than 30 grams (roughly one ounce) is treated as a misdemeanor offense which can be punished by up to 180 days in jail and a $1,000 fine. A second offense can result in felony prosecutions carrying up to one year in jail and $5,000 in fines. Possession of an amount greater than 30 grams is a felony punishable by at least six months in jail and as many as two and a half years in prison, plus a $10,000 fine. Sale or growing of cannabis is treated as a felony even for a first offense, and treated as a felony with the harsh felony penalties and numerous other effects such as loss of trade and professional licenses, the right to vote, and stigmatization.

The aggressive enforcement of marijuana possession laws needlessly ensnares hundreds of thousands of people into the criminal justice system and wastes billions of taxpayers’ dollars. Even worse, it’s carried out with a clear racial bias. This was documented by the ACLU in its groundbreaking 2013 report, “The War on Marijuana in Black and White”. This “war” has failed to reduce marijuana use and availability and diverted resources that could be better invested in our communities, drug rehabilitation, and education, not to mention what it has done to disproportionately black and brown people’s lives, many who are just starting out in life, who are the real victims of this wasteful and racist law enforcement effort.

Against this national and Indiana background, let’s take a look at the two bills pending before the 2019 Indiana General Assembly. SB 213 introduced by Sen. Tallian (D-Portage) would completely decriminalize possession of less than two ounces of cannabis. HB 1283, introduced by Rep. Jim Lucas (R-Seymour) would make possession of less than 30 grams (just above one ounce) of cannabis merely a Class D infraction (carrying a $25 fine). On a more troubling note, HB 1283 would make a person having only 10 nanograms of THC metabolites in their blood while driving subject to a Class C misdemeanor. Of the two bills, SB 213 would appear to be the most favorable to the cannabis reform community, although if offered a chance to receive a hearing in their respective committees, the details could be subject to improvements via amendments.

It is well past time for Indiana to end its draconian, racist and outmoded cannabis criminal laws which, unlike nearly every other criminal statute, punish what is in essence a victimless crime. Either SB 213 or HB 1283 would move Indiana closer to modern trends that will someday soon lead to ending the mindless and counterproductive cannabis prohibition once and for all. This in turn will allow us to redeploy law enforcement resources in ways that will protect the public without harming Hoosiers over the age of 21 who wish to privately use cannabis and related products.